Federalism: The Early Years

As early as 1796, the year of the first contested Presidential election, the battle lines were drawn. Although there were no formal political parties, there were loose coalitions of political thought, and as is the nature of any war, it came down to two sides: The Federalists, who preferred a more powerful national government, and the early beginnings of the Republicans, who favored a less powerful national government. Both parties recognized the need for a national government, but as always, the devil is in the details.

John Adams, the Federalist candidate, won the electorate by 3 votes. At that time the runner-up became the Vice President, and Thomas Jefferson represented the Republicans in that office. The Federalists retained control of Congress, and it didnâ€™t take long for human nature to kick into gear. When given a little bit of power, most of us tend to use it to gain more power. We rationalize this abuse of power by claiming it is for the â€œgreater goodâ€. But just as we are witnessing the effects of political power run amok today, the first Americans also had to deal with this problem.

In 1798 Congress passed the Alien and Sedition Acts, a set of 4 laws that are eerily similar in nature to the kind of legislation weâ€™re seeing today. The Alien Acts gave the President the power to detain, imprison, or deport individuals believed to be â€œdangerous to the peace and safety of the United States.â€ The Sedition Act made it a crime to publish â€œfalse, scandalous, and malicious writingâ€ against the federal government. In fact, there were Republican journalists that were prosecuted and convicted under this law.

This was simply an early test of American federalism. Our contemporary debate is really pretty old. How much power should be given to the federal government? But as Thomas Jefferson pointed out, the real question is this: who gives the federal government the power in the first place? Itâ€™s fine to debate how much power the feds should have, but if we donâ€™t understand where it comes from, we are destined for failure.

When these federal laws were passed in 1798, there were people who began talking about secession. Thomas Jefferson stepped in and worked behind the scenes to show people that there was a better solution. Remember, Jefferson was a Republican Vice President serving in a Federalist administration, so he couldnâ€™t directly oppose this nationalistic trend. Instead, he covertly worked with James Madison to author state resolutions that would condemn these unconstitutional laws. Jefferson himself authored theÂ Kentucky Resolutions of 1798 and Madison drafted theÂ Virginia Resolution of 1798.

Both of these documents are extremely important to American federalism. Just as Jefferson intended, these resolutions laid the groundwork for the principles of nullification and interposition. His message was a reminder that â€œwe the peopleâ€ are ultimately in charge, not the federal government. The federal government derives its power from the people. Itâ€™s surprising to me that this was an issue as early as 1798.

21 thoughts on “Federalism: The Early Years”

At first blush, it is surprising to think that people had trouble understanding that their new government's powers came from THEM and not the other way around.

Perhaps they were just so brainwashed by the English Monarch system that they had trouble shaking off that mental programming and realizing that THEY were in charge.

Regardless, it is clear to me that Americans TODAY need a strong and constant reminder that we do not get our rights from the government. Again, it is the other way around.

WE formed the governments to protect our rights. This has to be said over and over.

I heard a TV commentator named Ed Something claim that America was founded on compassion. I'm sure that sounds great to Ed and his viewers, but it's simply wrong.

America was founded on LIBERTY. Communism, in theory, is more about compassion ("From each according to his ability, to each according to his need. I know, I know – it doesn't work in the real world!).

It's that kind of garbage constantly spewing from the media that brainwashes people.

For most of us who read this web site, we're probably way beyond the idea that government is the source of power and we're more interested in HOW MUCH power it should have and the details of it all. And, that's a good question, and we should look to the Constitution for answers.

But, for the masses out there, they FIRST need to get to the point where they stop looking to government for all the answers!

I'm glad someone recognize the fact that our government was not found on compassion but on freedom. Freedom enables compassion in the form of a person's choice while a government founded on compassion denies a person's freedom in the form of forced charity to others.
People complain all the time about how the rich are getting richer and the government should stop that. What they should be complaining about is that freedom is being consumed by the government since that is the government's function in our society.

Tim, but what happens when the rich buy policy? What happens when they go to Washington and say, "Hey. I've got a few million to spend on a great idea. We need a health care system overhaul."?

You see, that's how many of the rich get richer. They USE government as a vehicle. Think about railroad monopolies. Think about labor disputes and the way government handles those. Think about regulations that protect markets and prevent would-be competitors from competing because the hurdles have been raised. The rich buy all these government favors. You should not be advocating that we get out of their way and allow them to do even more. Regulations exist to protect the rich and their markets.

I think it is a legitimate concern to focus on the fact that our nation is ruled by Oligarchy. This "free market" push is really a blind effort.

If the people at the top of the totem pole can lobby Washington for anything, they will. It is THAT easy. In fact, they have lobbied Washington since the beginning, and they've gotten most anything they've ever wanted.

You can't pretend that we need to step out of their way, while they use all their resources to ram the Constitution down the throats of the people. That is an ill-informed approach. We need to stand in their way.

Freedom is a state of affairs when the wealthy and powerful do not exercise too much authority over the less wealthy and less powerful. That is all freedom is.

You are not free to go into the automobile manufacturing business without complying with a set of regulations so large that only existing players can stay in the market. See my point? All the regs are good for GM, Toyota, Ford, etc., and they suck eggs if you want to be a new entrant and compete with them.

I'm sorry but you just do not get the concept of freedom (Liberty). Government's only role is to protect the freedom of the individual nothing more. The problem is the government lost site of this ago time ago and is well on its way to becoming tyrannical.

You're example of the automobile business proves my point. The size of government is the problem not the rich.

I suppose what he means by the "rich" are the "well connected". One can be wealthy without licking Uncle Sams boots (though in this day and age that's getting harder) but the fascist system of Government/Business "cooperation" only makes Gordon Geko's saying, "If you're not inside then you're outside" to be self evident. The system is gamed.

Jeff Mathews: While itÅ› very easy to throw rocks at the ¨Rich¨ for having power and influence, It doesn´t necissarily mean that their influence is always evil. I invite you find one ¨revolution¨ or nation changing ¨movement¨ that wasn´t in need of and supported by some ¨rich¨ person or group at a substantial level.

I agree, Bruce, but will return the challenge. Name me one revolution that was NOT brought to throw off the control of an oppressive, rich class.

But, for the reasons you state, we need to be cautious because, in our present, potential and peaceful revolution, there will always be the desire to call in to the ranks somebody who has wealth and influence. Usually, movements get co-opted that way, and the result is to trade one ruling elite for another. If Obama's brazen deceit to his followers was not clue enough, then, God help the people.

The American Revolution was unique in that there remained plenty of untapped lands for the people to tap and to grow, pretty much just for the taking in many respects. Those days are long past, and the economic game is more a zero-sum one.

Here you go. On the real Tea Party: In England, Parliament gave the East India Company a monopoly on the importation of tea in 1698.[3] When tea became popular in the British colonies, Parliament sought to eliminate foreign competition by passing an act in 1721 that required colonists to import their tea only from Great Britain.[4]

See? It's the same old thing. Private interests get government in their back pockets, and the people's interests become secondary.

So, no, this should not be a modern movement to get out of the way of people who have enough money to hi-jack government even more. God knows they've already hi-jacked it enough. Think of all the crap that sucks in government, and just know that the people need to get in the way and not out of the way.

Here you go. On the real Tea Party: In England, Parliament gave the East India Company a monopoly on the importation of tea in 1698.[3] When tea became popular in the British colonies, Parliament sought to eliminate foreign competition by passing an act in 1721 that required colonists to import their tea only from Great Britain.[4]

See? It's the same old thing. Private interests get government in their back pockets, and the people's interests become secondary.

So, no, this should not be a modern movement to get out of the way of people who have enough money to hi-jack government even more. God knows they've already hi-jacked it enough. Think of all the crap that sucks in government, and just know that the people need to get in the way and not out of the way.

I get your points, I think, and you're probably right. I'm wondering what YOU think the answer is? You say that we should NOT get out of the way of the rich and powerful (I think that's what you're saying…) and we should get in their way.

What does that mean to you? HOW should we get in their way? WHO, exactly, do we obstruct?

I'm not trying to be difficult. I think you've got a good point but I'm new to your line of thought and I don't have a good grip on a solution.

If there's no solution, then, I guess you're of this opinion: "I felt much better after I gave up all hope."

Think of all the problems with the Constitution that so many brilliant founders could not solve with their genius. How young was our nation before it went to Civil War? How confused are the people – even today – who champion the Constitution, but offer inconsistent views? For example, read the article and my comments here at TAC on the Pennsylvanian history of nullifying the Federal Fugitive Slave Laws. These issues were NOT settled forever, as many think our founders had hoped. The people evolved. The Constitution became unworkable. A great war ensued.

So, what do the people do? Is it hopeless? Honestly, my hopes don't run all that high. Our people are not downtrodden and hungry enough. As long as they are relatively comfortable, there is not much incentive to invest in pitchforks, tar and feathers.

But, as to my thinking in general, many think I am a liberal, a communist or a socialist because I believe that equality of opportunity and inalienable property rights are not perfectly compatible. Money = power, and absolute power corrupts absolutely.

How do you have the top 1% owning more than the bottom 90% combined, and really believe in the facade of equality of opportunity?

Our "notion" of capitalism is not too different than the board game, Monopoly. Everyone is on equal footing when the game starts, but as the game is played, a player gets lucky and beats the odds, winding up with the best properties. From that point on, it is obvious who is going to win the game, and the other players are merely riding it out. Toward the bitter end, the person in the lead offers to keep the players in the game by giving them small amounts of money from the bank just to tide them along, but never enough to result in the possibility of coming out with a new winner. For that to happen, the game must be started all over again.

Guest. I don't pretend to have the solution. I am certainly nobody's savior.

All I can do is study what I can regarding statistics and history and try to use my judgment, be it as limited as my knowledge is.

One thing that comes to mind is that in the 1950's and 1960's, this was the heyday of the middle class. Single-income families made enough to live, save, enjoy health care and pensions. This was how good it was on a single income.

And so, I ask myself if the rewards were spread more evenly among the middle class back in the 1950's and 1960's, what were the basic functions of society that existed? First, we had stronger unions. Second, the marginal tax rates on the highest incomes were double what they are now. Third, global trade was not as prevalent, so American workers were not in a race to the bottom to see how little people would actually agree to work for. Fourth, the estate tax was in play. Fifth, capital gains and dividends were taxed at double the rate they are now. Sixth, there was a greater degree of thrift.

I know all of these concepts are "progressive," and someone will always have an argument as to how they are bad or unfair. I would disagree that they are so bad, because all these evil, "socialistic" concepts were in play, and while they were, the middle class was at its peak of prosperity.

Honestly, I did not grow up in the 50's and 60's. So, it is possible it was a horrible existence. I know we did not have cheap electronics, computers and the internet, and these new technologies (especially cheaply produced by overseas sweat shops) are certainly some nice luxuries to ease the trend into a 2-class system. But the wealth and income distribution statistics of the 50's and 60's do indicate a greater shared prosperity than we have now.

Beginning (predominately) in the 1980's, wealth and income has become increasingly concentrated at the top. The stagflation of the Carter years ushered in the anti-progressive ideals of Reaganism, where people were led to believe that if we gave breaks and favors to the top, the benefits would trickle down. Unprecedented deficit spending did help to take us out of the cycle of stagflation, but the statistics show that wealth did not trickle down.

I think many people, even when faced with the fact that wealth never trickled down, still think that more tax cuts at the top will benefit the middle class. As a result, cut-throat policies have been bundled up and packed as "good" and "capitalistic." Of course, these policies have all been damaging to the middle class. Cheap, foreign crap has not been good for manufacturing and jobs in America. Tax breaks did not trickle down. Deregulation led to the dot.com and real estate bubbles.

Basically, I think the middle class has been conditioned to vote against its own interests, in favor of the interests at the top, and deluded by the faith that benefits to the top will trickle down.

My suggestion would be to let billionaires vote for themselves. They'll be just fine. They've got it made, and so will many generations of their descendants to follow. Instead of voting for policies that favor those at the pinnacle of our food chain, the middle class should unabashedly vote and engage the political process for its own, selfish interests.

If government is hi-jacked by vested money interests, and vast wealth is accumulated on the backs of taxpayers, then, why should the ill-gotten gains deserve any protection by the people?

The notion that the concepts of equality of opportunity and inalienable property rights can forever co-exist is just a ruse. It works good for young Republics that have vast frontiers to be explored and settled, where people are mostly starting out on relatively equal footings (or at least a lot more equal). It doesn't work so well after a sizable handful of generations, where the lands have been captured, marked, fenced-off, claimed and owned. There are few new frontiers left. We are in the later stages of Monopoly (the board game), where most players don't have a chance to win and are kept in the game by the banker just to extend the life of the game to the player(s) with all the good properties.

Solution? I don't know, but I have my doubts there were be any voluntary ceding of wealth and power by those who have it. I also don't think it will come down to a piece of paper – that is, unless the people wave it around like Bibles, as they do when trying to justify holy wars.

People choose to fight when they want. They are not told "when" by some piece of paper. They make up their minds, and then, the piece of paper becomes their justification. It's just like in the other thread on the other article. In the practice of law, you decide the result you want, and then, you go find case law to prove it.

As was clearly written in the Declaration, the People have a natural right to abolish the current form of government and establish that government which serves the People better. It did not say that in order to get better government, the People always need to revert back in time.

So, the Constitution is not necessarily THE answer. It is a starting point for people to fashion a new philosophy and to ask the hard questions – e.g. how compatible are the notions of equality of opportunity (on the one hand) and inalienable property rights (on the other)? That's one such issue. There are others, but that is a big one.

As deTocqueville is quoted: "Grant me 30 years of equal inheritances and a free press, and I shall give you a Republic."

This is nothing new, and societies have been at such crossroads at many times in history. In fact, the Americans threw off an oppressive British oligarchy – not communists. Our rebels in the 1770's were downtrodden rogues, who barely could afford decent clothing and shoes. So, no we're not that bad off.

Fast forward, and we are not even really back at a crossroads, yet. The soup lines are not long enough. But just keep in mind, there is nothing so "special" and "unique" about our stage in the cycle of political decay. Many great societies have come and gone. Some improved; others did not.

Take France, for example. We like to bash their system as being so "socialist," but I would much rather live under the socialism of France today than its pre-Revolution (French Revolution) aristocratic oppression, where the people were starving in the streets. There is something to be said for "sharing the wealth," as communistic as it sounds.

A nice distribution of wealth assures capital is less idle, more people are productive, social unrest is reduced, etc. All we have to do is look south to Mexico to see what it's like to stand back and allow wealth to become more concentrated. Millions of Mexicans flock over the border to look for opportunity because they can't make it there. According to the statistics on our GINI coefficient, we are destined to meet the same situation as Mexico's distribution by the year 2045. Whether you'd call that communism, socialism, or whatever "ism" makes one feel comfortable, Mexico's fault lies in its vast wealth inequality.

If wealth is not in constant motion and changing hands, capital becomes idle. With idle capital, people become underemployed. When it gets bad enough, the people become hungry enough, and they don't wait around to inherit the earth. They take it over and run it the way they want – until it gets corrupted, and they do it all over again.

So, no. It's not all hopeless. But on the flip side, if you want a major systemic change, it will probably have to get much closer to hopeless before that change will happen. All of our vast social systems are in place for a reason – to maintain order. We disdain it as welfare, but there is a flip-side…. Do you want sickly, hungry people out in the streets, begging and coughing all over you and spreading their diseases? That would be capitalism at its finest hour.

I guess that makes me a commie. Just kidding. I know most people have thought about these things and agree to some degree. It's just a matter of how you spin it.

With all due respect to Mr. Sands, I'm gonna play the devil's advocate on this one. The idea that sedition laws are "unconstitutional" doesn't accurately reflect constitutional principles, IMO. Yes, Federalist Adams, a disciple of traitor Alexander Hamilton, wrongly ignored the 1st A.'s prohibition on Congress's power to make laws which prohibited speech. But regardless that Congress didn't have the power to make sedition laws, since the BoR's protected privileges and immunities didn't apply to the states at the time, the states had the power to make sedition laws that were arguably very constitutional.

All "rights", including free speech, reside initially with the people. The people may 'sacrifice' those rights to some extent when they form governments for their mutual benefit.

If the people of a given state did not authorize their state government to pass laws restricting free speech, the state would NOT have the power to do so. It might not be a "violation" of the US Constitution because the 14th amendment hadn't been passed BUT it would be a violation of the people's natural rights to freedom. Is that what you're saying? If so, it seems to be a distinction without a difference.

In other words, the Bill of Rights wasn't necessary for the people in the States to have the right to speak freely. The only way they could lose that right is if they voluntarily gave it up. This could happen, for example, in the drafting and ratification of a STATE constitution.

I suspect most state constitutions protect free speech. (I'm not aware of any that don't but I'm not familiar with all 50 – or for our President, 57 – of them. I've looked at several state constitutions over the years and my recollection is that they usually have a 'free speech' clause probably because so many copied the US Constitution.)

It seems much more likely that most states have NEVER had the power to make valid sedition laws. I think you'd have to find a state constitution that specifically didn't protect free speech in order to find a state that has the power to make valid sedition laws.

Actually, you got my point for the most part. But allow me to provide some additional interesting stuff. And I'm going to limit the information because I don't have time to organize it right now.

First, note that Jefferson's Bill for Religious Freedom was essentially a "shame on you" for any future Virginia lawmakers who used 10th A. protected state power to regulate religion to stifle religious expression. So not only does this mean that state lawmakers can say yes or no to religious expression, they can flip-flop their yeses and nos as time goes on, but certainly with respect to the threat of getting tarred and feathered by the voters when they go too far in prohibiting religious expression.

As a side note to tar and feathers, we need recall laws to give the boot to bad-apple federal and state lawmakers and judges instead of letting them serve their terms.

Next, since I've introduced religious expression to the discussion, I am disturbed that pro-Creationism factions, for example, have traditionally been stifled by the courts in the name of the mythical constitutional principle of separation of church and state. This is because, regardless that the 14th A. applied the privileges and immunities of the 1st A., for example, to the states, John Bingham, the main author of Sec. 1 of the 14th A., had officially clarified that the 14th A. did not take away state powers. So regardless that the 1st A. prohibits Congress from making religious laws, the states can still authorize Creationism to be taught in public schools to an extent. This extent is determined by reasonable laws, eg. non-mandatory classes, or by Congress with its power to enforce 14th A., or by constitutional amendment.

But the problem remains that Creationism is now prohibited in public schools by PC, anti-religious expression perversions of the 1st and 14th Amendments, IMO.

Finally, I think that the states have more power to regulate (prohibit) things like porno and lies by the MSM than they think. The problem is that when state lawmakers and judges no longer understand state sovereignty versus the 14th Amendment, then free speech is abused. After all, I think it safe to think that the Founders had not intended to protect porno to the extent that it is protected today, IMO, when they prohibited Congress from regulating free speech.

When government invades where it shouldn't it forces individuals to try and protect themselves. One way is for "Private Interests" to fund campaigns and hire lobbyists. You seem to be suggesting more government to correct this when the opposite is true.